NOTE: Recorded at the close of Tenther Radio Episode 26, the following is a special Bill of Rights Day message from Michael Boldin. The show airs live online every Wednesday at 5pm Pacific Time here. Find us on iTunes at this link.
Today is an important day in American history. On December 15, 1791, the first ten amendments to the United States Constitution – known as the Bill of Rights – came into effect through the process of ratification by the States.
Most people have their own view of what the purpose and effect of the Bill of Rights was supposed to be. Some think it authorizes DC to enforce a nationwide free speech zone. Others think it requires the Feds to protect the right to keep and bear arms in every nook and cranny in the country. And others think that there must be a nationwide separation of church and state in every state, county, city and town.
To those of you who believe that federally-run education in this country has destroyed public knowledge of the Founders’ Constitution, my next comment is no shocker – all of these people are wrong. According to the founders, that is.
First, we have to understand why we even have a Constitution – and thus – a Bill of Rights.
The entire founding generation toiled under the tyranny of the King of England, a king that had no virtually no limits on his power. He could make rules as he went, change them on a whim, and change them back. He could seize your property, your labor or your life – and you could do almost nothing about it.
Because of this, the Constitution was written to spell out the limited powers delegated to the federal government. And it was clearly understood that this government had no powers that weren’t delegated to it in the Constitution.
The original Constitution contained no Bill of Rights. Many of the Framers felt it wasn’t necessary since the Constitution clearly enumerated the few powers delegated to the federal government. They thought any further restrictions would be redundant.
However, some of them thought there could be misunderstandings. So a Bill of Rights was proposed – and some states ratified the Constitution only on condition that those amendments would be added, which happened a few years later.
Adding a preamble to a legal document was common practice at the time. It could indentify the parties, list important facts, and explain the purpose of the document.
Many people are unaware that, like the main body of the Constitution, the Bill of Rights had a preamble too – explaining its purpose.
So what was this purpose? No better way to answer that question than in the words of the founders themselves – the preamble to the Bill of Rights:
The conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added…
Rob Natelson, in his book The Original Constitution explains what this means:
“Thus, some of the proposed amendments were “declaratory…clauses” (that is, rules of construction) designed to “prevent misconstruction” of the Constitution by explaining how the instrument should be interpreted. The rest were “restrictive clauses” to prevent “abuse” of federal powers by creating external limitations curtailing those powers.” [emphasis added]
The important message here is that the Bill of Rights doesn’t apply to you, it doesn’t apply to me, it doesn’t apply to any person at all. It applies to the federal government.
NOT THE STATES? NO WAY!
Maybe it’s because most people weren’t taught that a Preamble to the Bill of Rights even existed, or maybe because they confuse the word “constitutional” with the word “good” – but it’s quite rare to find someone who doesn’t disagree with the preamble to the Bill of Rights.
Many opponents claim things like…
“The 1st Amendment is the only one that mentions just Congress, so the rest apply to everyone and not just congress.”
“The states agreed to the Bill of Rights, and combined with the Supremacy clause, that means the states can’t violate those parts of the constitution.”
While there are others, these are some of the most prominent reasons people give for – essentially – disagreeing with the Founders themselves on the Bill of Rights.
Each could use a full discussion on their own, but the important points are:
1. The First Amendment – this was the only Amendment which specifically prohibited the making of a law. When the Founders wrote the word “law” in the First Amendment, they meant it. And Congress was the only branch of government that was supposed to make law. So today, while we have an executive branch that makes law through executive order, and a judicial branch that legislates from the bench; at the time of the founding it would have been absurd to include either of those branches in an Amendment preventing the making of law. And that’s a big part of why the 1st starts with the words “Congress shall make no law…”
2. Claiming that because the states ratified the Bill of Rights that it somehow meant each amendment applied to the states too is just bad logic. Think of it like this – You and twelve business partners own an apartment complex. You hire a person to manage the property, and give him some rules about how you want your property run. He follows your rules pretty closely at first, but eventually he starts showing up at the homes of all thirteen of you. He starts demanding that each of you follow the rules for the apartment building that you gave him – in your own homes!
Absurd? Absolutely. Rules created by employers for their employee don’t necessarily apply to the employers too – unless specifically agreed upon in advance. In the case of the Bill of Rights, in the Preamble the employers told the employee (the federal government, that is) that it would have new rules, not them.
And if that logic-defeating logic weren’t enough, James Madison hammered it home in his famous speech introducing the Bill of Rights. In it Madison proposed that the Bill of Rights have three distinct restrictions on the states.
He said: “No state shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases.”
What happened? Congress considered Madison’s proposal to have some of these new restrictions apply to the states. They rejected it.
The end result? The body of the Constitution primarily tells the federal government what it is allowed to do. The Bill of Rights tells the federal government what it is not allowed to do, such as the following non-exhaustive examples…
1. Make no law abridging freedom of speech, press, religion, or assembly.
2. Do not infringe on the right to keep and bear arms.
3. Do not “quarter” soldiers in peacetime.
4. Do not conduct unreasonable searches and seizures, and don’t issue warrants without probable cause.
5. Do not force people to testify against themselves.
6. Do not deny a speedy trial to a person accused of a crime.
7. Do not deny trial by jury to an accused person..
8. Do not impose excessive bail.
9. Don’t assume that this is an exhaustive list of rights. Just because some are listed doesn’t mean the people don’t have others.
10. Don’t exercise any power not delegated in this Constitution.
What’s the big message behind all this?
Centralization of power is always bad, even when it appears to have a good short term result. For every time you approve of the federal government taking on a new power for things YOU approve of, you’ve just authorized your opponents to do the same for things you oppose.
That’s why every person who advocates using the federal government to make abortion illegal nationwide has just authorized the other side to make abortion legal nationwide when THEY are in power. Get that, Rick Santorum?
And, every person who advocates forcing every state to allow marijuana to be legal has just authorized their opposition to ban it in the entire country when THEY are in power.
The same principle can be applied to just about every issue we face
The system we have today puts almost all decisions about the fate of your liberty into the hands of nine unelected, unaccountable, politically-connected lawyers. Not a good place for any society to be.
How do we fix this mess? The first step is to stop going to the federal government to fix problems that are actually caused by the federal government itself (most are!). Doing so is not just an absurd idea, it has led us to the place we are in today.
Moving forward to the principles behind the Bill of Rights – decentralization of power – will bring you a huge step closer to liberty. It’s an idea whose time has come.